Riding to the Danger Zone: U.S. Fifth Circuit Panel Considers the Zone-of-Danger Test for Maritime Emotional Distress

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In In re Deepwater Horizon, No. 20-30300, 2021 WL 96168, a three-judge panel of the U.S. Fifth Circuit Court of Appeal held that fishermen who intentionally came upon the scene of the wreckage of the Deepwater Horizon failed to state a claim of negligent infliction of emotional distress under general maritime law.  The district court dismissed their case under Federal Rule of Civil Procedure 12(b)(6).  On January 11, 2021, the Fifth Circuit panel affirmed.

In the Fifth Circuit, plaintiffs may recover for a maritime claim of emotional injury under the physical-injury test, but the Fifth Circuit has never decided whether plaintiffs may also recover under the zone-of-danger test.  See Barker v. Hercules Offshore, Inc., 713 F.3d 208, 224 (5th Cir. 2013).  Here, the court again left the question open, finding that the complaint failed to satisfy either the physical-injury test or the zone-of-danger test.  2021 WL 96168 at *2.  Nevertheless, the opinion indicates that the Fifth Circuit has yet to rule out a ride to the danger zone.

Plaintiffs Bradley Shivers, Scott Russell, and Mark Mead were on a fishing trip.  When they saw the burning rig, they drove their boat fifteen miles to the scene to assist with rescue efforts.  They circled around the rig, keeping 100 to 200 feet away to avoid the heat.  Because they saw small explosions and heard rumbling noises, they feared that another large explosion would occur.

When they left the scene, they had only minor burns, scratches, and bruises.  They later brought suit against BP and several other defendants, alleging negligent infliction of emotional distress.

The district court dismissed their case under Rule 12(b)(6).  In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex., on Apr. 20, 2010, 452 F. Supp. 3d 455, 463 (E.D. La. 2020).  The court found that the plaintiffs failed to plead sufficient facts to recover for emotional damages under general maritime law.  Id. at 461-63.  On appeal, the Fifth Circuit affirmed. Reviewing the dismissal de novo, the panel held that the facts alleged in the complaint failed to satisfy either the physical-injury test or the zone-of-danger test.

First, under the physical-injury test, a plaintiff may recover for a maritime emotional injury claim if there is some physical contact.  Plaisance v. Texaco, Inc., 966 F.2d 166, 168 (5th Cir. 1992).  The contact, however, must be more than trivial, and it must cause the emotional injury.  Ainsworth v. Penrod Drilling Corp., 972 F.2d 546, 547 (5th Cir. 1992).

Here, the plaintiffs failed the test.  The court found that their pleaded injuries seemed trivial, and they did not allege that their distress was caused by physical contact. Instead, the court found that “their distress stems instead from what they saw: first the exploding rig and later the destruction in the surrounding water.” 2021 WL 96168 at *2.

Second, under the zone-of-danger test, the plaintiffs must establish (1) that they subjectively feared that they were in danger and (2) that they were objectively at immediate risk of danger.  Here, only the second prong was at issue, as the subjective component was uncontested.  Id.

The plaintiffs alleged that the intense heat, small explosions, and rumbling noises objectively put them in the danger zone.  The court interpreted its precedents to require the plaintiffs to be “in the same location as the accident and face immediate risk of harm.”[1] However, the plaintiffs were 100 to 200 feet from the rig and did not face immediate harm from the heat, explosions, and rumblings.  Thus, the court found that they were outside the zone of danger.  2021 WL 96168 at *3.

Furthermore, the court interpreted two district court cases cited by the plaintiffs to articulate a new requirement: that plaintiffs must “allege that they could not leave the dangerous area.”[2]  Here, this was not the case.  The plaintiffs could move their boat to avoid the heat, and they voluntarily left the scene.  2021 WL 96168 at *4.

The Fifth Circuit panel stopped short of formally adopting the zone-of-danger test because the plaintiffs failed to satisfy it.  Nevertheless, the court engaged in detailed analysis of the test,[3] and the opinion indicates that a formal adoption could be on the horizon.

[1] Id. at *3. (citing Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 931, 938 (5th Cir. 2014); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 224 (5th Cir. 2013); Plaisance v. Texaco, Inc., 966 F.2d 166, 167-68 (5th Cir. 1992); Ainsworth v. Penrod Drilling Corp., 972 F.2d 546, 548 (5th Cir. 1992)).

[2] In Anselmi v. Penrod Drilling Corp., 813 F. Supp. 436, 442 (E.D. La. 1993), the plaintiff was in the danger zone because he was aboard an exploding rig.  He felt the impact, could not easily flee and could not leave the rig for several hours.  In SCF Waxler Marine LLC v. M/V ARIS T, 427 F. Supp. 3d 728, 785 (E.D. La. 2019), appeal filed, No. 20-30019 (5th Cir. Jan. 13, 2020), the plaintiff was not in the danger zone when he witnesses a ship allision.  The plaintiff was standing on a dock over a thousand feet away from the accident, the ship had already passed the dock, and it was moving in the opposite direction.

[3] The analysis included an application of Fifth Circuit precedent considering, but failing to adopt, the zone-of-danger test.  See, e.g.,  Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 931, 938 (5th Cir. 2014); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 224 (5th Cir. 2013); Plaisance v. Texaco, Inc., 966 F.2d 166, 167-68 (5th Cir. 1992); Ainsworth v. Penrod Drilling Corp., 972 F.2d 546, 548 (5th Cir. 1992).

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